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Mar-a-Lago Raid: Judge Rejects DOJ Request For Partial Stay, Appoints Special Master

Mar-a-Lago Raid: Judge Rejects DOJ Request For Partial Stay, Appoints Special Master

As to DOJ claims that documents are classified and not subject to executive privilege: “The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion….”

Judge Aileen M. Cannon has rejected the motion of DOJ for a partial stay of her prior Order granting Donald Trump’s motion to appoint a Special Master. Judge Cannon also named senior federal Judge Raymond J. Dearie, who both the feds and Trump found acceptable in their submissions, to be the Special Master, and Judge Dearie signed his Declaration Of Special Master.

From the Order denying the motion for a partial Stay:

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion….

In many respects, the Government’s position thus presupposes the content, designation, and associated interests in materials under its control—yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations [see ECF No. 69 pp. 5, 8–12; ECF No. 84 pp. 11–15; ECF No. 88 pp. 3–7]. Under these circumstances, the Court declines to conduct a subset-by-subset, piecemeal analysis of the seized property, based entirely on the Government’s representations about what is contained in a select portion of the property. See United States v. Melquiades, 394 F. App’x 578, 584 (11th Cir. 2010) (explaining that, to have standing to bring a Rule 41(g) action, a movant must allege “a colorable ownership, possessory or security interest in at least a portion of the [seized] property” (quoting United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001)). Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request [see ECF No. 48 p. 3 (arguing that the “appointment of a special master is unnecessary” because the Government had already reviewed the materials and identified personal items and potentially privileged materials)].

Shorter version: The Judge isn’t going to take the feds’ word for anything:

…evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

The Judge also placed significance on the leaks of information about the supposed documents AFTER the seizure by the FBI – meaning if anyone has been a threat to national security relating to the documents, its the feds:

First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11].


#TheResistance Twitter Brigade is bigly mad.

If you ever had faith in federal prosecutors, don’t, these are long-time former federal prosecutors who sold their credibility for MSNBC gigs:


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So the 100 documents are getting priority treatment, and the truck and a half of garage sale items will sit sealed until after the important stuff is dealt with. Hm. I suppose it does make more practical sense rather than the other way around. If Formerly Classified Document 104X references the signed copy of Rush Limbaugh’s biography seized (just hyperbole, no idea what books were taken), it might make sense to hold the book. Unless the pants taken belonged to Sandy Berger or perhaps were a set of golf pants that violated the laws of fashion in some egregious way, I can see no way clothes could possibly be applicable to the warrant.

It is scary reading the responses on twitter. These people vote, most of them should be incarcerated.

I’d have liked to hear the judge throw shade at FBI/DOJ as in the issue can’t be as serious as they claim IF they can photograph the documents and leak it to MSM and social media … where their urgency is claimed to be getting the materials back under classified control / lock and key / need to know. They did more leaking than Trump – the photo should have been enough to toss the case entirely …

    Bruce Hayden in reply to MrE. | September 16, 2022 at 8:50 am

    The photo was staged anyway. The folders weren’t strewn across the floor when they were found like that, but neatly placed in banker boxes. The FBI agents were the ones who took the files out of the boxes, artfully arranged them on the ground, and then photographed their handiwork. Trump hadn’t been the one to pack them – that was the GSA. It was their job. And apparently, the classified cover sheets aren’t typically paper clipped, but stapled.

    For most of the documents, there was no urgency – the FBI had the originals of many, if not most of them. These were copies. They had had them for 5-6 years now, and knew that Trump had copies of them, because he had formally ordered their declassification his last full day in office. And the FBI was the agency ordered to declassify them. No surprise that the FBI’s Counterintelligence Division (CD) was involved in the MAL raid (and their Associate Director was the one claiming urgency, in his filing supporting the government’s Reply opposing the appointment of a Special Master)), since the documents embarrass that organization for its RussiaGate shenanigans. .

      Meh. We usually paper-clipped our cover sheets. A lot of our info was temporary in nature and stapling just wears out the cover sheet faster. We also worked in a secure, open storage facility.

Somewhere, Nelson from The Simpsons is saying “Ha-ha!”

I don’t understand. Since the CAT is out of the BAG since the FBI has already poured over the documents…nothing can be done to undo their raid and their review, photoing, and “fortifying” the documents. They don’t need these papers as they can create out of thin air anything the Hidden Junta wants. Nothing will stop Garland from his appointed tasks to steal the country into one party rule. He’s thugtastic.

    ecreegan in reply to alaskabob. | September 15, 2022 at 10:27 pm

    If one of the objectives was depriving Trump of his evidence that the FBI knew Russiagate was a lie all along, having an objective third party review that documentation may be less than desireable from the FBI’s perspective.

    Bruce Hayden in reply to alaskabob. | September 15, 2022 at 10:56 pm

    We are pretty sure that many of the documents were in the binder of RussiaGate documents Trump formally ordered declassified the last full day he was in office. They are probably incriminating documents from the DOJ and FBI, so they have the originals. They just want to disappear the copies that Trump took with him when he left the WH. If there are nuclear weapons related documents, they likely involve the Obama Administration negotiations with Iran. These, instead of embarrassing the DOJ and FBI, would embarrass Obama and Biden That may be why the WH bought in to the raid.

    From the beginning, the DOJ seems to have been trying to finesse that Trump very likely explicitly ordered declassified most (and implicitly the remainder) of the documents marked classified. Their idea was that if they just got their hands on them, they could disappear them into the bureaucracy, and wouldn’t have to deal with the pesky fact that the incriminating documents had been declassified, and were legally in Trump’s possession. Note that the same DOJ NSD and FBI CD implicated in the RussiaGate documents were to be the ones determining whether Trump would get them back. Convenient – if the finesse had worked.

      They just want to disappear the copies that Trump took with him when he left the WH

      It isn’t just about disappearing the original paperwork, it’s about keeping him from publicizing what’s on his backups, assuming he was smart enough to make them. They just have to keep the investigation open until Trump is dead.

    Dimsdale in reply to alaskabob. | September 16, 2022 at 7:27 am

    The docs admissibility in court or hoax perpetrated by the left comes into question.

    The judge is establishing the illegality of the DOJ behavior. I am not a lawyer but I don’t believe “What’s the use?” is a legal argument. Get the illegality on record. Tightening the noose.

    We don’t know what those documents reveal either. What if the judge decides to declassify them all and release them and it proves that the DOJ abused their power to cover up there illegal actions and this claim of god-like power by the DOJ becomes a key element of their arrogant attitude? We would then be back to woulda coulda shoulda. Just do it and worry about “What’s the use?” later when we finally know.

      Bruce Hayden in reply to Pasadena Phil. | September 16, 2022 at 9:18 am

      Many, if not most, were likely formally ordered declassified by Trump, and any remaining docs declassified by implication. Trump formally (Presidential letterhead, signature, photo of him signing, etc) ordered a binder of RussiaGate documents declassified his last full day in office. His formal order allowed minimal redactions to protect identities. 20 months later, they are still not acknowledged as declassified by the FBI, according to FOIA requests.

      These documents embarrass the FBI’s Counterintelligence Division (CD) and to a somewhat lesser extent, the DOJ’s National Security Division, for their perfidy and malfeasance in their RussiaGate/Crossfire Hurricane investigations and 4 Carter Page FISA warrants (the appointed Special Master, Judge Dearie, was a FISC judge at the time). Prior to the formal order, Trump had repeatedly tried to get the documents declassified, but they always came back almost completely redacted. Hence his formal order to declassify them. Note that the Associate Director of the CD was the official signing the letter attached to the Government’s Reply opposing the temporary injunction and appointment of a Special Master, on the grounds of their urgency. Which of course was nonsense, since the CD very likely had most of the originals (and these were copies of such). My theory is that the CD wants the copies back in order to disappear them.

      In her order yesterday, Judge Cannon clearly saw through the slight of hand being pushed by the government. The documents had been formally ordered to be classified by the President, who had plenary declassification authority at the time. The FBI ignored the order, and never declassified them -if they had, they probably should have marked Trump’s copies as no longer classified. Then they used the classified markings still on the documents to presume that they were still classified. Except, that ignored Trump’s formal order to declassify them. That’s the fast one they were trying to flash by the judge. Making things more interesting, Obama issued an EO making it clear that any boss over an agency classifying documents had the authority to declassify them (necessarily including the President) and that documents cannot be classified in order to protect an agency from embarrassment.

Remember Judge Dearie? Think FISA court, think Carter Page… interesting..

    Bruce Hayden in reply to amwick. | September 16, 2022 at 12:22 am

    Judge Dearie was an interesting suggestion by Trump’s lawyers. I think that it is highly likely that some, likely many, if not most, of the disputed items were in the binder of documents formally ordered declassified Trump’s last day in office. They contained RussiaGate documents that the FBI CD (and probably DOJ NSD) adamantly refused to declassify. Whenever Trump tried, the documents apparently came back almost completely redacted.

    The reason that Dearie is interesting as the Special Master is that he was on the FISC at the time that the four FISA warrants on Carter Page were issued, and the rumor is that he issued one of them. Being on the FISC means that he certainly did have a sufficiently high security clearance. But that he very probably saw and reviewed at least one of the Page FISA warrant applications, suggests that he knows far more about what is going on than someone without that experience.

    Very obviously, the same organization that prepared the FISA warrants, the FBI’s Counterintelligence Division (CD), where Peter Strzok was the deputy chief and Clinesmith was an attorney, which had hired Christopher Steele, then after firing him, hired Igor Danchenko, Steele’s primary subsource, as a Confidential Human Source (thus protecting him from Congressional and IG scrutiny) for most of the rest of Trump’s term, etc, is up to their eyeballs here again. It’s very likely incriminating copies their documents that they want back, they were involved in the MAL raid, and expect to be the organization responsible for determining who should end up with those documents. Note this from the judge’s order today:

    The Motion is accompanied by the Declaration of Alan E. Kohler, Jr., Assistant Director of the Counterintelligence Division of the Federal Bureau of Investigation (the “Kohler Declaration”) [ECF No. 69-1]. The Kohler Declaration states that the Government’s Security Assessments are “inextricably linked” to the Government’s criminal investigation, and that it would be “exceedingly difficult” to bifurcate the personnel involved [ECF No. 69-1 pp. 3–4]. On September 12, 2022, Plaintiff filed a response in opposition to the Motion [ECF No. 84], and on September 13, 2022, the Government filed a reply [ECF No. 88].

    The reason that Dearie was a gamble is that he is likely to know almost immediately what game is being played by the FBI’s CD here. The question I see is whether he will back the government here in order to protect his own good name, besmirched from having been duped by the CD (and DOH NSD) or will exact revenge for being duped by backing Trump. Easiest, I think, would be the latter – and just tell the government that Trump ordered the documents declassified. End of debate.

      I’m having trouble following what you said but I think it amounts to Judge Dearie was lied to by the FBI and is very likely motivated to correct his mistake and clear his name of being part of the corruption.

        Being lied to by the FIB seems to be SOP lately.

        Bruce Hayden in reply to Pasadena Phil. | September 16, 2022 at 9:26 am

        My point is that it was a bold choice by the Trump team, because it isn’t completely clear how Dearie is going to react. Finding out that he, and the other FISC judges involved were, essentially lied to, and they let them get away with it, by not checking the paperwork carefully enough, would embarrass the judges, and keeping the documents still classified and letting the FBI disappear Trump’s copies of them, would hide their failures. On the flip side, he may take having been lied to very seriously, and hang the Counterintelligence Division, who had been at the center of it, out to dry.

          I get it now. Your conclusion is the one I arrived at via a far less informed route. It seems to me that Team Trump would not have nominated Dearie unless they have insight into his character. I suspect he is far more likely to correct the damage done by the lies that slipped past him in the FISC than being a part of a cover-up. Great opportunity for him to set things straight while at the same time clearing his name of any appearance of corruption.

      You have greater faith in humanity and Dearie than I do. I think the easiest thing for him to do is back the government to keep what’s left of is once good name intact (as much as possible).

        Bruce Hayden in reply to dging. | September 16, 2022 at 9:38 am

        That is why I think that it was a bold choice – no one (besides Dearie) knows how he is going to jump here. The stress level in the DOJ and the FBI CD is probably spiking right now. He could be their friend. But he could very well be their very worst nightmare. Since the FISC was issuing those FISA warrants, an awful lot of incriminating evidence has come out, esp from the OIG and Durham’s investigation, that seriously raise questions about the CD’s veracity, most recently with the news that Steele’s primary subsource, Igor D, had been investigated by the FBI (CD) several years earlier for trying to obtain classified documents to sell to Russian Intelligence, but was then made a Confidential Human Source by them to protect him from being interviewed by Congress or the OIG.

        It should prove interesting.

      Here’s a question. Carter Page just lost his appeal on his conviction. Were Judge Dearie to issue a ruling that refers to his being lied to in making a decision that got Carter Page arrested in the first place, wouldn’t that establish grounds to reverse the appeal decision? I think I said that right…

        taurus the judge in reply to Pasadena Phil. | September 16, 2022 at 8:30 am

        You mean on his lawsuit?

        I doubt it would make a difference because his appeal was tossed for “standing” and not cause

          Yes, I’m having trouble keeping all of the particulars straight. But I would think this would establish grounds for the entire case against him. Wouldn’t that then re-establish grounds to sue the government?

          Page’s lawsuit was dismissed because:

          “Page faces at least three statutory roadblocks. First, Congress has not created a private right of action against those who prepare false or misleading FISA applications. Both the plain language and the structure of FISA make clear that civil liability under 50 U.S.C. § 1810 attaches only to those who conduct or perform electronic surveillance. Second, Congress has not provided for damages claims against federal officers for constitutional violations stemming from unlawful electronic surveillance in the national security context. And third, Congress has not waived the United States’s sovereign immunity for this kind of claim.”

          I don’t see how this could change any of that.

          BierceAmbrose in reply to taurus the judge. | September 16, 2022 at 4:41 pm

          So, Paige has no recourse because of the way congress wrote the law?

          Are we still counting demonstrated ways the ill-constructed “Patriot Act” and related spasm has gone sideways?

    True BUT the FBI & DOJ LIED to this Judge in their application for the FOSA Warrant.
    Fool me once…. He won’t be fooled again.

This is a big blow to the Lawfare shysters. They are all over leftist TV with exploding heads. They have zero liklyhood of success in the 11th Circuit. This ain;t DC. Foiled again.

I wouldn’t take the government’s word about anything either. There are the exact same people that willfully falsified evidence in order to get a FISA warrant that put Trump’s communications within the 3-hop rule due to Carter Page’s association with his campaign.

So far, it appears we have one honest judge…

But I’ll reserve judgement until this is done.

The tweet from Weissman is particularly hilarious, considering that he has the dubious distinction of having SCOTUS unanimously reverse one of the biggest criminal cases of his career. He actually bamboozled courts into convicting on his theory and twisted interpretation of a law, and not the actual statute. And destroyed a major accounting firm in the process.

I also note that the line containing “disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations” may indicate that the judge is also considering the impact of the Presidential Records Act and Trump’s unilateral authority to declassify virtually anything on a whim while President.

Indeed, it appears that Judge Cannon may well be amenable to a motion to quash the entire warrant soon.

    henrybowman in reply to Maz2331. | September 16, 2022 at 1:26 am

    When the president is an America First Republican, his power to declassify documents at a whim is a Danger to Democracy. and must be excised.

    When he is a Death to America Democrat, his power to issue EOs at a whim is a welcome Fundamental Transformation of America and must be encouraged.

    MarkJ in reply to Maz2331. | September 16, 2022 at 5:53 am

    Short version of Judge Cannon’s response to DOJ: “Not just no. Hell no.”

smalltownoklahoman | September 16, 2022 at 5:18 am

Score one for Team Trump! Let’s hope the review by the Special Master goes well!

As for those twitter reactions, well you can’t reason with someone who won’t accept your side has valid points.

    Wow the panic in those twits. Full blown TDS. I knew it was bad, but they are definitely off their meds.

      Dimsdale in reply to MarkSmith. | September 16, 2022 at 8:33 am

      They are petulant children, like teenagers that think they are so omniscient and experienced, when they are just flat wrong. It happens when you get your “news” from the MSM, Fakebook and Twatter.

      But, Kardashians….

      Fantasywriter in reply to MarkSmith. | September 16, 2022 at 1:41 pm

      I think it goes well beyond TDS. I recently read an article about Mass Formation Psychosis. This is what happened in Germany when the people were persuaded that the Jews were the cause of all their problems/inherently bad. They switched off the thinking part of their brains and just focused on that one overriding ‘truth.’ Once they had bought in, it would have been nearly impossible to reason them out of it.

      Biden, the press and the left in general have persuaded people that Trump/MAGA is the problem. People who buy it are no longer thinking. They’re just focused on doing away with the cause of all the problems.

Wham, bam, thank you, ma’am!

I still contend that the President has the ultimate authority to classify/declassify any document. It is therefore impossible for him to illegally possess documents that are ‘deemed’ classified. If you do not believe the commander-in-chief has that power, you must believe in (and approve of) a ‘deep-state’ that does wield that power and is really running this country and not subject to the peoples will. It seems simple to me.

    Milhouse in reply to oldvet50. | September 16, 2022 at 11:11 am

    I don’t think anyone disputes that he has the authority to declassify. At least I haven’t seen anyone dispute it. What’s in dispute is whether he did declassify these documents. He claims now that he did so; his opponents say they don’t believe him, and they think he just made that up now. He says there was a standing order; people who were in a position to know about such an order say they never heard of it.

    But what people seem to be missing is that in any criminal case he wouldn’t have to prove anything; it would be up to the prosecution to prove, beyond reasonable doubt, that he didn’t declassify the documents. And I don’t see how they could do that, no matter how likely it appears that he’s lying. They might be able to prove it in a civil case, on the preponderance of the evidence, but not beyond reasonable doubt.

      Bruce Hayden in reply to Milhouse. | September 16, 2022 at 1:43 pm

      I think that the government is trying to finesse this by pushing the presumption that if a document is marked as classified, it is. This was essentially called out by Judge Cannon in her order. That presumption is most likely valid for you and me, but not for the sitting President (which he was, when directing the GSA what to remove to MAL), who has plenary declassification authority, both Constitutionally and by Obama EO.

        BierceAmbrose in reply to Bruce Hayden. | September 16, 2022 at 5:37 pm

        Staged, then distributed photos of even empty folders with classification marks is mishandling, a sort of procedural problem that’ll get you in big trouble if you’re nobody.

        If the folders actually contained classified info, it’s worse, even if no classified info was disclosed. Actual disclosure is worse yet.

        Weirdly, the most robust protection for whoever staged n released those photos would be if The Orange Crush had, indeed, declassified everything in them. Their best defense is that their managing declassification just stinks, n after 18 months, their markings were still just wrong.

It’s interesting reading leftist tweets. Sometimes it seems as if they really don’t know that they project so much.

Good ruling Judge Cannon.

Prof Jacobson, is there a way for ordinary citizens to have standing to sue these people for their false statements that by inference impugn the character and motives of citizens who dare to support the candidate and president these progressives despise? It’s just one lie after the other, and they have influence on people who vote, and on our neighbors. This gaslighting is what is dangerous.

“Trump never said in court he declassified them and submitted NO evidence…”
–the President can declassify anything at any time by just saying so.

“…cover to the lifelong criminal traitor…”
–lifelong is a long time. When did it start, this traitorous behavior.
–if you can’t provide you should be sued for slander and disbarred if a lawyer.

“…Thomas, who’s married to a Trump isurrectionist.”
–there was no insurrection on Jan 6. The insurrection was the collusion to undermine Trump as candidate, president and future candidate.

“…compromised Federalist Society hack”
–name how the Federalist Society can compromise a judge.

“…the fix is in.”
–the fix was the slow motion coup to undermine our country to remove Trump. Correcting that is justice.

    There is no possible way for a defamation case to arise out of these tweets. First of all, none of them are making false statements of fact; they’re all opinions. Second, even if someone were to make a solid statement of fact about all Trump voters, and that statement could be proved to be false and defamatory, there still couldn’t be any suit because Trump voters are a large group, and there is no such thing as group libel in the USA. You can say anything you like about any large group, and no member of that group can sue you for it, because you can always say “Well, I didn’t mean you, just all the other X”. The courts have generally set the limit at somewhere around 25 people; last I checked 75 million is a lot larger than 25.

      BierceAmbrose in reply to Milhouse. | September 16, 2022 at 6:01 pm

      “There is no possible way for a defamation case to arise out of these tweets.”

      There are a dozen ways for a defamation case to arise out of these tweets. Most interesting is how that plays out vs. specific assertions of crimes, by specific people. The “public figure” “protections” for defamation have been reduced a bit of late, with more cases pending.

    BierceAmbrose in reply to baileyyankee. | September 16, 2022 at 5:59 pm

    This is a job for the Federal Disinformation board, rather than the courts, I think.

    Those tweets are full of disinformation, and the Feeb security weenies are the experts on that. I’ll even give odds that the phrases being spewed originated with them in a psyop.

    BierceAmbrose in reply to baileyyankee. | September 16, 2022 at 6:18 pm

    I wonder if knowingly describing people as convicted of crimes shouldn’t be treated differently from rhetoric, or metaphor.

    — The Orange Crush has yet to be criminally convicted, including of treason.
    — Mrs. Justice Thomas has not been convicted of insurrection. I am not aware off any convictions for “insurrection” among the infamous “insurrectionists” from Jan 6. They aren’t convicted because *the feds can’t make the case for what that word means.*
    — The Judge has not been found to be compromised, as the term is used in judicial oversight.

    Jackholes use some words *because* they refer to crimes: it sounds more concrete and consequential. That is, until they retreat to “it’s just rhetoric” when challenged. It’s an insidious form off Motte and Bailey; the same kind of execrable behavior as Jon Stewart’s “Clown nose on / clown nose off.” shtick.

    I stopped listening to JS, when I couldn’t figure out whether he was giving me dependable facts, or just spouting off. He stopped being funny, so why listen?

    Perhaps I over-rate the hacks: I think they could express themselves just fine without using the names of crimes to express themselves. Though, perhaps it doesn’t matter much. Won’t be long until “Ultra-MAGA” is made a crime; or did that already happen? Dark Brandon has a pen and a phone, after all.

    It certainly is more convenient if you can sanction someone as a criminal without all that pesky having to convict them.

It was mentioned early on about Trump putting on locks that the FBI required. I would like to know about all the records that obama had promised to put online that are still missing—what locks did the fbi require? What security is there since his materials are not stored at his residence so no secret service agents? How many other past POTUS have materials someplace other than their library? What kind of security clearances have those documents gone thru???

“DOJ claims that documents are classified and not subject to executive privilege”

This then begs the question…who is the higher authority that sits above a President who signs off on what is and is not classified when a President says something is classified??

Asking for a friend.

    Milhouse in reply to mailman. | September 16, 2022 at 11:20 am

    Huh? Who suggested there was such an authority?

    The point here is that Trump saying he declassified something while he was in office doesn’t mean he did it. And he can’t do it now. On the other hand, it seems impossible to prove beyond reasonable doubt that he didn’t.

      mailman in reply to Milhouse. | September 16, 2022 at 11:31 am

      Its the fucking headline Justice Milhouse 🤣🤣🤣

      Bruce Hayden in reply to Milhouse. | September 16, 2022 at 1:30 pm

      More to the point, it appears that the FBI’s CD is very much involved here, given the letter from its Associate Director attached to the Government’s Reply to Trump’s motion for a temp injunction and Special Master (I.e. it’s the CD that wants the documents). Trump formally ordered a binder of RussiaGate documents declassified his last full day in office. That means that those documents almost assuredly implicated the CD in wrongdoing. They would still be marked as classified, and almost assuredly were in the documents ordered removed by Trump to MAL. So, at a minimum, it is almost certain that at least some, probably many, of the 100 documents still marked as classified had been formally ordered declassified.

    Bruce Hayden in reply to mailman. | September 16, 2022 at 1:18 pm

    This is, kinda the problem. Many of the documents are probably from the binder of RussiaGate documents Trump formally ordered declassified his last full day in office – and apparently weren’t. They embarrassed the FBI’s Counterintelligence Division (CD), which was behind Crossfire Hurricane, RussiaGate, the 4 fraudulently acquired FISA warrants, etc. They likely created most of those documents, so control them. They refused to declassify them, despite several requests by Trump when he was in office, instead returning them mostly redacted. So, the last day in office, Trump personally signed a formal order, on Presidential letterhead, with photographers clicking away, that the documents in the binder be declassified, except for minimal redactions to protect identities. The CD, in charge of those documents, apparently never did declassify them, despite Trump’s explicit orders to the contrary. And now the Associate Director of the CD was the government official explaining in a letter attached to the Government’s Reply to the motion for temporary injunction and Special Master were detrimental. They apparently need those documents, and need them now, in order to expeditiously bring suit – despite having the originals to probably most of the documents, and copies of the rest, and Trump probably having no originals, and just copies of everything marked classified.

    My theory is that much of this is in order for the CD to disappear Trump’s copies of these documents.

    They appear to be trying to finesse the question of what documents are really classified, and what aren’t, by asking the court to presume that if they are marked as classified, they still are. Judge Cannon appears to have seen through this ruse. Maybe it will turn out that Trump explicitly or implicitly declassifying documents, or ordering them declassified, is insufficient. But now that question is probably off the table short run (in time for the rapidly approaching election), and would probably take a reversal at the 11th Circuit and refusal of the Supreme Court to step in to pull off. As the judge pointed out -,this is a very open legal question that it isn’t about to presume away, as the government very much wants her to do.

Andrew Weissmann will be forever tainted by his handling of the Arthur Anderson prosecution (overturned by a unanimous Supreme Court decision) and the Mueller investigation which turned up nothing. The former led to the collapse of an accounting firm employing 85,000 people and the latter to a baseless hounding of a sitting president.

A law school professor of mine was once asked what was the most important thing a criminal defense attorney should hope for in a case: “A virtuous prosecutor,” was the reply.

I recall seeing all kinds of Twitter posts by outraged liberals on how all of Judg Cannon’s rulings didn’t follow the law at all and would be overturned on appeal wtihin 24 hours.

Still waiting.

If Trump ordered the documents declassified, and they weren’t, isn’t the real issue insubordination by whatever agency was responsible to carry out the President’s order?

PuttingOnItsShoes | September 16, 2022 at 3:57 pm

If Trump ordered their declassification — which we know he did, subject to minimal redaction — and those redactions were never provided for in a reasonable time period, then the opportunity for the intelligence community to redact anything was forfeited by them by failing to respond. Therefore the documents are declassified without redactions.

We can guarantee that the intelligence community never said “OK we’re working on it, hold your horses till we get back to you” or anything like that; they just went dark, assuming that they weren’t declassified until they did their redactions, which they never did.

If that’s how they plan on playing, it good luck in the court of public opinion. Of course they can always find a corrupt DC judge and jury if that’s where it ends up we all hope it doesn’t.

Due to the 6th Amendment the government should not be allowed to use classified evidence in a criminal trial or prosecution or even any sort of criminal investigation. A search warrant too. They themselves should publish the incriminating evidence. Trump should have the right to confront any and all witnesses and evidence the government proffers.